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He Kura Koiora I hokia: Draft National Policy Statement on Indigenous Biodiversity

November 28, 2019

Contacts

Partners Matt Conway, Gerald Lanning, Bill Loutit, Padraig McNamara, Jonathan Salter, Sarah Scott, James Winchester
Special Counsel Mark Baker-Jones

Resource Management Act Māori business Climate change (inc Zero Carbon Act and Emissions Trading Scheme)

On Monday the Government released for consultation its draft National Policy Statement on Indigenous Biodiversity (NPS). In this FYI we discuss the key features of the NPS and give our initial observations.

What you need to know

  • The NPS aims to resolve uncertainty and create a step change in management and protection of indigenous biodiversity under the Resource Management Act.
  • Consultation on the NPS runs until 14 March 2020, with the Government expecting the Final NPS to be gazetted in mid-2020.
  • The accompanying discussion document helpfully poses 62 questions where feedback is sought.

Background

The NPS seeks to form a nationally coordinated response addressing the decline in New Zealand’s indigenous biodiversity that threatens the existence of many species and ecosystems. The aim of the NPS is to resolve uncertainty and under-valuing of indigenous biodiversity under the Resource Management Act 1991. It seeks a step change in management and protection of indigenous biodiversity.

The NPS follows on from the work of The Biodiversity Collaborative Group, a stakeholder-led group funded by the Ministry for the Environment to develop national-level policy for indigenous biodiversity in New Zealand. The Group worked to develop a recommended draft National Policy Statement and reported to the Government in October 2018.

The NPS applies to terrestrial indigenous biodiversity throughout New Zealand, including wetlands. Indigenous biodiversity in the coastal marine area (CMA) and freshwater will continue (with some exceptions) to be managed under the New Zealand Coastal Policy Statement (NZCPS) and the National Policy Statement - Freshwater Management.

The fundamental framework adopted in the NPS to achieve an integrated and holistic approach to maintaining indigenous biodiversity is Hutia Te Rito. This framework recognises that the health and wellbeing of our terrestrial environment, its ecosystems and unique indigenous vegetation and fauna, is vital for the health and wellbeing of the wider environment and communities. The NPS requires Hutia Te Rito to be “recognised and provided for”.

The NPS also has a strong emphasis on the recognition of tangata whenua as kaitiaki. For example, local authorities must provide opportunities for tangata whenua to be involved in the development of their plans, policies and strategies that give effect to the NPS, and the NPS sets out measures for identifying and managing taonga species or ecosystems.
 

Key features of the NPS

Section 6(c) - areas of significant vegetation and habitats of indigenous fauna

A key feature of the NPS is that it requires territorial authorities to identify areas with significant vegetation and habitats of indigenous fauna, with a likely contentious requirement being to distinguish between high and medium value Significant Natural Areas (SNAs). The NPS sets out principles to follow in the process of identifying SNAs, as well as the ecological criteria for identifying and mapping them. The aim is to make the identification of SNAs more consistent across New Zealand, and the NPS suggests an onerous requirement to review SNA schedules every two years.

The rubber is likely to hit the road through the provisions that manage the adverse effects from new activities that impact on SNA values. Significantly, many types of development within or affecting SNAs will be constrained, as the NPS requires that such development “avoid”:

  • loss of ecosystem representation and extent;

  • disruption to sequences, mosaics or ecosystem function;

  • fragmentation or loss of buffering or connectivity within the SNA and between

  • other indigenous habitats and ecosystems; and

  • any reduction in population size or occupancy of threatened species using the SNA for any part of their life cycle.

The “effects management hierarchy” must be applied to “other effects”. This hierarchy requires consideration of, in descending order of priority, avoidance, remediation, mitigation, and then offsetting and compensation of residual effects.

There are some limited exceptions to the requirement to “avoid” effects, including exemptions relating to nationally significant infrastructure, Māori land, and development on existing lots within SNAs. In relation to areas used for pastoral farming and plantation forests the NPS has provisions that allow those uses to continue, even if they are within areas that are identified as SNAs. The identification of high and medium value SNAs also allows for different types of activities.

A challenge we can see with these exceptions is that in the coastal environment (excluding the CMA which is not covered by the NPS), the NZCPS will prevail over the NPS in the event of any conflict, as the NZCPS has a strong “avoid” requirement in relation to particular types of vegetation and ecosystems. There are also acknowledged inconsistencies between the NZCPS and NPS, for this defined area, for example in the criteria for identification of SNAs.

Section 31(1)(b)(iii) - maintenance of indigenous biological diversity

Councils will be required to take steps to maintain indigenous biodiversity outside of SNAs. Specifically, policy statements and plans will be required to:

  • specify where, how and when controls on subdivision, use and development in areas outside SNAs are necessary to maintain indigenous biodiversity; and

  • apply the effects management hierarchy to adverse effects, except that biodiversity compensation may be considered as an alternative to biodiversity offsetting (and not only when biodiversity offsetting is not demonstrably achievable).

In some instances, areas that are not identified as SNAs will be required to be assessed to determine if they should be treated as an SNA. This continues an existing approach often applied in planning frameworks, where it is accepted that it is sometimes practically or ecologically not possible to identify every single area of significant vegetation and habitats of indigenous fauna in a district. Where that is the case, effects on those areas are to be managed as it they were SNAs.

Other significant changes in policy direction

The NPS also places a positive onus on Councils to promote the restoration of degraded SNAs, important buffering or connectivity areas, wetlands, urban areas, or other areas that align with national priorities.

Significantly, Councils will be required to take active steps to increase indigenous vegetation cover to at least 10% in urban areas. Councils will also be required to have more general targets for increasing indigenous vegetation cover across the region.

The NPS also contains principles regarding biodiversity offsetting and compensation.

Climate Change

The NPS also has a specific focus on ensuring that New Zealand’s indigenous biodiversity is resilient to the impacts of climate change. Local authorities will be required to promote the resilience of indigenous biodiversity to climate change, with the NPS specifying some mandatory considerations.
 

Our initial observations

The NPS will provide clear policy direction on how SNAs are to be protected, as a manner of national importance in section 6 of the RMA.

If the wording of the NPS remains unchanged it will require some local authorities to make significant changes to their RMA plans. Those changes could significantly restrict development in some places. The task of identifying medium and high value SNAs will in some cases be costly and complex, and the subject of challenge from both those opposed and in favour of greater levels of biodiversity protection - especially given the requirement to “avoid” certain types of effects on SNAs.

In terms of the statutory obligation to maintain indigenous biodiversity, the NPS does not define the scale at which indigenous biodiversity must be maintained - eg regionally, within an ecological district, or at some smaller scale. This would benefit from clarification.

The NPS places a significant emphasis on the involvement of tangata whenua in decision-making including, in some cases, for there to be agreement with tangata whenua. When complying with the positive obligation on local authorities to involve tangata whenua councils will need to be conscious of the potential for more than one group to claim this status. These issues were recently addressed by the Environment Court decision in Ngāti Whātua Ōrākei v Auckland Council [2019] NZEnvC 184.
 

Where to from here?


Get in touch

Please contact one of our experts if you’d like help preparing feedback to submit as a part of the consultation process, or if you would like to know about the potential impact of the NPS on your activities.

Contributors chris.ryan@simpsongrierson.com